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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
| Docket Number: |
66572-3 |
| Title of Case: |
In Re The Marriage Of: Aradhna Luthra, Res. And Vikas Luthra, App. |
| File Date: |
01/23/2012 |
SOURCE OF APPEAL
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| Appeal from King County Superior Court |
| Docket No: | 09-3-04289-0 |
| Judgment or order under review |
| Date filed: | 12/22/2010 |
| Judge signing: | Honorable Deborah Fleck |
JUDGES
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| Authored by | J. Robert Leach |
| Concurring: | Linda Lau |
| Stephen J. Dwyer |
COUNSEL OF RECORD
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Counsel for Appellant(s) |
| | Patrice Mccausland Johnston |
| | Law Ofc of Patrice M Johnston PLLC |
| | 7016 35th Ave Ne |
| | Seattle, WA, 98115-5917 |
|
| | Catherine Wright Smith |
| | Smith Goodfriend PS |
| | 1109 1st Ave Ste 500 |
| | Seattle, WA, 98101-2988 |
|
| | Valerie a Villacin |
| | Smith Goodfriend PS |
| | 1109 1st Ave Ste 500 |
| | Seattle, WA, 98101-2988 |
|
| | Vikas Luthra (Appearing Pro Se) |
| | 12624 Se 83rd Ct. |
| | Newcastle, WA, 98056 |
Counsel for Respondent(s) |
| | James S. Sable |
| | Law Offices of James S Sable |
| | 200 W Mercer St Ste 112 |
| | Seattle, WA, 98119-3958 |
|
| | Shelby R Frost Lemmel |
| | Masters Law Group PLLC |
| | 241 Madison Ave N |
| | Bainbridge Island, WA, 98110-1811 |
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Marriage of:
No. 66572-3-I
ARADHNA LUTHRA,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
and
FILED: January 23, 2012
VIKAS LUTHRA,
Appellant.
Leach, J. -- Vikas Luthra appeals from court orders enforcing his
compliance with a final parenting plan and denying his request for
reconsideration. He contends the court's orders improperly modified the final
parenting plan and decree of dissolution by (1) restricting him from visiting or
volunteering at his son's school and (2) imposing greater restrictions on his
contact with Aradhna Luthra. The first restriction does not modify the parenting
plan; the second improperly modifies the restraint contained in the decree of
dissolution. We affirm in part and reverse in part.
Background
Vikas and Aradhna Luthra1 divorced in July 2010. The final parenting
plan entered by the court for the couple's seven-year-old son, Akshay, recited,
1 Aradhna has since remarried and now goes by the name Aradhna
Forrest. For clarity, this opinion refers to both parties by their first names. No
disrespect is intended.
No. 66572-3-I / 2
"The father's involvement or conduct has an adverse effect on the child's best
interests under RCW 26.09.191(3)(g)." The temporary parenting plan, entered
while the dissolution was pending, provided Vikas with residential time with
Akshay on Wednesday afternoons from 3:00 to 9:00 p.m. The final parenting
plan discontinued the midweek visitation until Vikas made progress in treatment
for his severe obsessive-compulsive disorder. Because the court entered the
parenting plan in July, while Akshay was on a summer schedule, the court
ordered that the midweek visitation provision would change when Akshay
returned to school in the fall. In the decree of dissolution, the court restrained
Vikas from "knowingly coming within or knowingly remaining within 500 feet" of
Aradhna's home or workplace.
Less than one week after classes started in September, Vikas began
visiting Akshay at his elementary school, eating lunch with his son and
volunteering in the classroom, sometimes several days a week. Additionally,
after Aradhna told Vikas she and Akshay would attend weekday school open
house, Vikas showed up and followed them as they met Akshay's teachers.
Vikas continued to follow Aradhna as she spoke with friends at the event. After
these incidents, Aradhna moved to enforce the parenting plan limitations on
Vikas's midweek contact with Akshay and the restraining order. In its order to
enforce compliance, the court, acting on its own motion, stated that it was
clarifying the relevant provisions of the plan. It ordered Vikas to immediately
cease visits with Akshay at school or any other time and place not specifically
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No. 66572-3-I / 3
awarded in the final parenting plan but also gave him the right to chaperone one
field trip per year and participate in one classroom cultural event, provided
Aradhna would not be present. The court also ordered Vikas to "remain at least
500 feet from [Aradhna], with the exception of the residential transfers."
Standard of Review
We generally review a trial court's ruling dealing with the provisions of a
parenting plan for abuse of discretion.2 A trial court abuses its discretion if its
decision is manifestly unreasonable or is based on untenable grounds or
untenable reasons.3 A court's decision is manifestly unreasonable if "it is
outside the range of acceptable choices, given the facts and the applicable legal
standard."4 A decision is based on untenable grounds if "the factual findings are
unsupported by the record; it is based on untenable reasons if it is based on an
incorrect standard or the facts do not meet the requirements of the correct
standard."5
Analysis
Vikas contends that the court modified the final parenting plan without
following mandatory statutory procedures. An order modifies a party's visitation
rights when it either extends or reduces them from the scope originally intended
in the decree.6 RCW 26.09.260 governs modification proceedings. This statute
2 In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997).
3 In re Marriage of Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993).
4 In re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298 (2002).
5 Fiorito, 112 Wn. App. at 664.
6 Rivard v. Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969).
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No. 66572-3-I / 4
authorizes a modification to nonresidential provisions upon a showing of a
substantial change in circumstances of either parent or child, if the adjustment is
in the child's best interest.7 A trial court abuses its discretion when it fails to
follow the statutory procedures for modifying a parenting plan.8 A clarification,
on the other hand, is "'merely a definition of the rights which have already been
given.'"9 It may define the parties' respective rights and obligations if they
cannot agree on the meaning of a particular provision.10 It is not subject to the
same procedural requirements that govern modification proceedings.
Vikas argues that the court's purported clarification is an improper
modification that essentially imposes a restraining order against him for his son.
Contrary to his contention, the court's order does not expand or restrict either
parent's rights. It simply spells out the intended scope of visitation granted in
the original plan. Vikas assumes that the final parenting plan allows any contact
not expressly prohibited by it. Because he cites no authority for this extreme
view, we assume there is none.11 The final parenting plan provides that Akshay
shall reside with his mother except for days and times specifically described in
the plan. The residential schedule grants Vikas only the right to be with his child
at the times and places specified and nothing beyond those times and places.
7 RCW 26.09.260(10).
8 In re Marriage of Watson, 132 Wn. App. 222, 230, 130 P.3d 915 (2006).
9 In re Marriage of Christel, 101 Wn. App. 13, 22, 1 P.3d 600 (2000)
(quoting Rivard, 75 Wn.2d at 418).
10 Rivard, 75 Wn.2d at 419.
11 DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193
(1962).
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No. 66572-3-I / 5
To hold otherwise would ignore the plan language of the parenting plan.
The temporary parenting plan allowed Vikas midweek residential time and
reserved on finding statutory limiting factors on his visitation. In stark contrast,
the final parenting plan identified three limiting factors based on Vikas's
obsessive-compulsive disorder and his abusive use of conflict in the past.
Based on these findings, the court eliminated contact between Vikas and Akshay
during the school week, at least so long as Vikas's obsessive-compulsive
disorder was not under control.
Alternatively, Vikas argues that if the court's orders did not modify the
parenting plan, the court erroneously included the clarified restrictions in the
plan because they were not reasonably calculated to address the court's
concerns about Akshay's exposure to Vikas's obsessive-compulsive behaviors.12
At the core, Vikas argues that the court's concerns about Akshay's exposure to
Vikas's home-cleansing rituals justifies only restrictions limiting the time Akshay
spends at Vikas's home. But this argument essentially challenges the court's
original findings of fact and the finding of statutory-limiting factors during the
original proceedings. Vikas did not appeal the court's findings or the limitations
in the final parenting plan. We will not consider such a challenge here. The
order Vikas now challenges appropriately interprets and clarifies restrictions
contained in the final parenting plan.
12 To begin however, Vikas misstates the standard of review for parenting
plans and encourages this court to apply a more rigorous de novo standard.
The abuse of discretion standard clearly applies to parenting plan reviews. See
Littlefield, 133 Wn.2d at 46.
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No. 66572-3-I / 6
Vikas relies heavily upon In re Marriage of Katare,13 where a father
appealed restrictions in a parenting plan that prevented him from taking his
children out of state. While the Court of Appeals held that the trial judge's
findings of fact did not support some of the restrictions imposed,14 that holding
has no application here because Vikas never challenged the court's original
findings or restrictions.
Next, Vikas challenges the court's imposition of additional restrictions on
his contact with Aradhna. He contends that additional restriction also is an
unauthorized modification. The decree of dissolution requires that Vikas remain
at least 500 feet from Aradhna's home and office. The court's order to enforce
requires him to remain 500 feet from her at all times, except residential transfers.
Neither party moved to modify this restraint or argued that its terms were
unclear. Indeed, the language of the restraining order is quite clear. Though
the court may have wished to prevent Vikas and Aradhna from having direct
contact -- a possibility supported by other provisions requiring the parties to
communicate mostly by e-mail and to use a mediator -- the restraining order's
language is unequivocal. Therefore, the change to the restraining order is a
modification, not a clarification. Because neither party sought a modification of
the decree of dissolution, the court lacked authority to do so. The court abused
its discretion by imposing these new restrictions on Vikas's contact with
Aradhna.
13 125 Wn. App. 813, 822, 105 P.3d 44 (2004).
14 Katare, 125 Wn. App. at 832.
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No. 66572-3-I / 7
Conclusion
Because the court properly clarified the parenting plan's visitation
provisions but improperly modified the restraining order against Vikas, we affirm
in part and reverse in part.
WE CONCUR:
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